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Trading Terms and Conditions
This page was last updated on
Friday, 08 August 2008 02:12:00 AM
Conditions
of Carriage
!
Trading Terms
- The Company carries on business as an
international freight forwarder and its carriage of goods is merely incidental thereto.
The Company is not a common carrier and will accept no liability as such. The Company may
refuse at its sole and absolute discretion to accept any goods for carriage without
assigning any reason therefore.
- Subject to express instructions in writing given by the
Customer and accepted by the Company in writing, the Company reserves to itself complete
freedom to decide upon the means, route and procedure to be followed in the handling,
storage and transportation of the Goods and shall be entitled and authorised to engage
independent third parties to perform all or any of the functions required of the Company
upon such terms and conditions as the Company in its absolute discretion may deem
appropriate.
- The Company is entitled to retain and be paid all
brokerages, commissions, allowances and other remuneration customarily retained by or paid
to shipping and forwarding agents and insurance brokers and no such brokerage commission,
allowance, or other remuneration shall be payable or allowable to the Customer or its
principal (if any).
- Quotations are given on the basis of immediate acceptance
and subject to the right of withdrawal or revision by the Company. If any changes occur in
the rates of freight, insurance premiums, warehousing, statutory fees or any other charges
applicable to the Goods, quotations and charges shall be subject to revision accordingly,
with or without notice to the Customer.
- The Customer, consignor and consignee of the Goods, and
their respective agents, if any, shall be bound by and be deemed to warrant the accuracy
of all descriptions, values and other particulars furnished by any one or more of them to
the Company for customs, consular and other purposes, and shall be liable for any duty,
tax impost or outlay of whatsoever nature levied by the authorities at any port or place,
for or in connection with the Goods, and for any payment, fine, expense, loss or damage
made, incurred or sustained by the Company in connection therewith, whether or not arising
by reason of any inaccuracy or omission of any such description, value or other particular
and, notwithstanding any negligence on the part of the Company, to indemnify the Company,
against any such loss damage, expense or fine arising from any such inaccuracy or
omission.
- The Company shall not effect insurance on the Goods
accepted by it except upon receipt of express instructions given in writing by the
Customer and the Customer's written declaration as to the value of the Goods and any such
insurance effected by the Company may be subject to such exceptions and conditions as may
be required by the insurance company or underwriter accepting the risk, in the event of
any dispute in regard to liability under any such insurance policy for any reason
whatsoever the insured shall have recourse against the insurer or underwriter only and the
Company shall have no liability or responsibility in relation to any such insurance
policy.
- (1 ) any loss, mis-delivery, delay in delivery,
deterioration, contamination, evaporation or non-delivery of, or damage to the Goods or
consequential loss arising therefrom howsoever caused or for any reason whatsoever other
than (subject to Sub-paragraph of this clause and Clause 9 hereof) loss or damage to the
Goods occurring whilst the Goods are in the actual custody of the Company, and under its
actual control, and where such loss or damage is due to the wilful act or negligence on
the part of the Company, its servants or agents.
(2)
damages arising out of a loss or depreciation of market attributable to delay in
forwarding or in transit of the Goods or failure to carry out instructions given to it by
the Customer, loss, damage, expense or additional cost arising from or in any way
connected with marks or brands on, weight, numbers, contents, quality or description of
the Goods, or loss or damage resulting from fire, water, explosion or theft, whether or
not caused in any such case by the wilful act or negligence on the part of the Company,
its servants or agents.
- (1) In the case of goods with value exceeding Two hundred
dollars ($200.00) per package or unit or the equivalent of that sum in other currency, the
value will not be declared or inserted in a Bill of Lading for the purpose of extending
the Shipowner's liability under Article (iv). Rule 5 of the Sea-Carriage of Goods Act 1924
except upon express instructions given in writing by the Customer.
(2) In the case of carriage by air, no option or declaration of
value to increase air-carrier's liability under the Civil Aviation (Carriers Liability)
Act 1959, Article 22 (2) of the first schedule will be made except on express instruction
given in writing by the Customer.
(3) In all other cases where there is a choice of tariff
rates according to the extent of the liability assumed by carriers, warehousemen or
others, no declaration of value (where optional) will be made for the purpose of extending
liability, and the Goods will be forwarded or dealt with at the Customer's risk for
minimum charges, unless express instructions in writing to the contrary are given by the
Customer.
- Notwithstanding the terms of Clause 7 (1) and any other
provisions hereof, the liability of the Company shall not in any circumstances exceed
Twenty dollars ($20.00) per package. If the Customer requires that the liability of the
Company should not be governed by that limit, written notice thereof must be given to the
Company before any goods or documents are entrusted to the Company, together with a
statement of the value of the Goods and, upon receipt of such notice, the Company may in
its entire discretion agree to its liability being increased to a maximum amount
equivalent to the amount stated in the notice in which case it shall be entitled to effect
special insurance to cover its maximum liability and the party giving the notice shall be
deemed by so doing to have agreed and undertaken to pay to the Company the amount of the
premium payable by the Company for such insurance. Should the Company not give its
agreement to such increase in its liability in writing prior to receiving the Goods or
documents pertaining thereto its liability shall remain limited as if such notice had not
been given.
- Instructions to collect on delivery (C.O.D) in cash or
otherwise are accepted by the Company upon the condition that the Company in the matter of
such collection will be liable for the exercise of reasonable diligence and care only.
- Where the Goods are perishable and are not taken up
immediately upon arrival or are insufficiently or incorrectly addressed or marked or
otherwise not identifiable, they may be sold or otherwise disposed of with or without
notice to the Customer, consignor, owner or consignee of the Goods and payment or tender
of the net proceeds of any sale after deduction of all costs, expenses and charges
incurred by the Company, in effecting such sale or disposal shall be equivalent to
delivery.
- Where the Goods are non-perishable and cannot be delivered
either because they are insufficiently or incorrectly addressed or marked or otherwise not
identifiable or because they are not collected or accepted by the consignee, they may be
sold or returned at the Company's option at any time after the expiration of 21 days from
a notice in writing sent to the address which the Customer gave to the Company on delivery
of the Goods. All costs, charges and expenses incurred by the Company and arising in
connection with the sale or return of the Goods shall be paid by the Customer. A
communication from the Company or its agent to the effect that the Goods cannot be
delivered for any reason shall be conclusive evidence of that fact.
- The customer warrants that the Goods are not noxious,
dangerous, hazardous, inflammable, explosive or likely to cause damage. In the event of
breach of this warranty the Customer and any person delivering the Goods to the Company or
causing the Company to handle or deal with the Goods (except under special arrangements
previously made in writing) shall be liable for any loss or damage caused thereby and
shall indemnify and keep indemnified the Company against all damages, loss, penalties,
claims, costs and expenses incurred by the Company in connection therewith. In the event
that the Goods are found to be noxious, dangerous, hazardous, inflammable, explosive or
likely to cause damage they may be destroyed or otherwise dealt with at the sole
discretion of the Company or any other person in whose custody they may be at the relevant
time. If such Goods are accepted under arrangements previously made in writing they may
nevertheless be destroyed or otherwise dealt with if they become dangerous to other goods
or property. The expression 'goods likely to cause damage' includes goods likely to
harbour or encourage vermin or other pests and all such goods as fall within the
definition of hazardous and dangerous goods in the legislation governing carriage by rail
in the States and Territories of Australia.
- Pending forwarding and delivery, the Goods may be
warehoused or otherwise held at any place or places at the sole discretion of the Company
at the Customer's risk and expense.
- Notwithstanding any prior dealings between the Company and
the Customer or any rule of law or equity or provision of any statute or regulation to the
contrary, contracts, documents and other matter (including cash, cheques, bank drafts, and
other remittances) sent to the Company through the post shall be deemed not to have been
received by the Company unless and until they are actually delivered to the Company by the
postal authorities, or placed in the Company's post office box, if so addressed.
- The Company shall be under no obligation to make any
declaration to, or to seek any special protection or cover from, the Department of
Railways or railways authority in any State of the Commonwealth of Australia or any
airline or road transport authority in respect of any goods falling within the definition
by that body:
(i) of dangerous or hazardous goods or
(ii) of goods liable to be stored in the open unless
written instruction to that effect are given to the Company by the Customer.
- The Company shall have no obligation to take any action in
respect of any Goods which may be recognisable as belonging to the Customer unless it has
received suitable instructions relating to such Goods together with all necessary
documents. In particular the Company shall not be obliged to notify the Customer of the
existence or whereabouts of the Goods or to examine them or to take any other steps for
their identification, protection or preservation, or for the preservation of any claim by
the Customer or any other party against the carrier, insurer or any third party.
- In the event that the Goods are landed from any vessel or
aircraft or other vehicle of transport in a damaged or pillaged condition and it is
necessary for an examination to be held, or other action to be taken by the Company in
respect thereof, no responsibility shall attach to the Company for any failure to hold
such examination or take such other action unless the Company has been given sufficient
notice to enable it to arrange for such examination or for the taking of such other action
as the case may be.
- (1) In the absence of special instructions, it shall be at
the sole discretion of the Company to decide at which time to perform any or all of the
various acts which may be necessary for the completion of its services in relation to any
particular matter. The Company shall have no liability or responsibility by virtue of the
fact that there may be a change in the rates of duty, wharfage, freight, railage or
cartage or any other tariff, before or after the performance by the Company of any act
involving a less favourable rate or tariff, or by virtue of the fact that a saving may
have been affected in some other way had any act been performed at a different time and
whether its performance of any of the acts aforesaid is delayed or precipitated through
the negligence of the Company, its servants or agents or howsoever caused.
(2) In the event of any advice being requested by the Customer and
given by the Company in respect of the rate of customs duty applicable to the Goods (being
imported goods) or as to the particular tariff or classification applicable thereto under
any Act whether State or Federal affecting customs or customs tariffs or any ordinances or
regulations made thereunder and in force from time to time, the Company expressly
disclaims any liability in respect of any loss arising directly or indirectly from such
advice, or as a result of any action taken pursuant to it whether based upon the
negligence of the Company, its servants or agents or upon any other cause of action
whatsoever, and the Customer shall be deemed to have released the Company from any such
liability and shall indemnify the Company against any claim, action suit or proceeding,
whether at law or in equity made, commenced or instituted by any person against the
Company in respect of such advice and action taken pursuant thereto.
- The Company shall under no circumstances be precluded from
raising a debit in respect of any fee or disbursement lawfully due to it, notwithstanding
the fact that a previous debit or debits (whether excluding or partly including the items
now sought to be charged) had been raised and whether or not any notice was given that
further debits were to follow.
- Wherever it is necessary, for the purpose of these
conditions or any other purpose whatsoever, for instructions to be given to the Company,
such instruction shall only be recognised by the Company as valid if given in sufficient
time in the light of the circumstances in relation to the matter in question: standing or
general instructions, or instructions given late, even if received by the Company without
comment, shall not be binding upon the Company.
- Without prejudice to the rights of the Company at common
law the Goods (and all documents relating thereto) which come into the possession or under
the control of the Company shall be subject to a special and general lien and pledge for
monies due to the Company in respect of services and/or disbursements relating to the
Goods: and for any other indebtedness to the Company from whatever cause by the Customer,
consignor, owner or consignee of the Goods. If such indebtedness is not paid in full by
the respective debtor within fourteen days of receipt of notice from the Company that it
intends disposing of the Goods, the Company may sell the Goods either by public auction or
private treaty at its sole discretion and apply the net proceeds of sale towards the said
debtor's indebtedness.
- It is expressly agreed that no servant or agent of the
Company shall be under any liability to the Customer, consignor, owner and/or consignee
for any loss, damage or delay of whatsoever kind arising directly or indirectly from any
act, neglect or default on his/her part while acting in the course of or in connection
with his/her employment in relation to the Goods, and without prejudice to the generality
of the foregoing provisions in this clause, every exemption, limitation, condition and
liberty herein contained, and every right, exemption from liability, defence and immunity
of whatsoever nature applicable to the Company, shall also be available and shall extend
to protect each and every such servant or agent of the Company as aforesaid and for the
purpose of this clause the Company is or shall be deemed to be acting as agent or trustee
on behalf of and for the benefit of all persons who are or might be its servants, or
agents from time to time and all such persons shall to this extent be or be deemed to be
parties to this agreement.
- (1 )This agreement and any collateral agreements made by
the Company with the Customer wherever made shall be governed and construed according to
the laws of the State of Australia in which this agreement is entered into and shall be
subject to the exclusive jurisdiction of the Courts of the said State.
(2) In the event that this or any other such agreement shall be
held to be subject to the laws of the Commonwealth of Australia, or of any particular
State of the Commonwealth, or any other legislature then, except where repugnant to the
provisions of those laws, these conditions shall continue to apply and shall be
void only to the extent that they are inconsistent with or
repugnant to those laws and no further.
(3) All the rights, immunities and limitations of
liability contained herein shall continue to have their full force and effect in all
circumstances notwithstanding any breach of any term or condition hereof or any collateral
agreement by the Company.
(4) Unless written notification to the contrary is given
by the Customer to the Company at or prior to entering into this agreement, the Customer
expressly warrants and represents that all or any services to be supplied by the Company
and acquired by the Customer pursuant to this agreement, are so supplied and acquired for
the purposes of a business, trade, profession or occupation carried on or engaged in by
the Customer.
- No agent or employee of the Company has the authority to
alter or vary these trading conditions unless such alteration or variation is approved in
writing by the Company.
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